GUARDIANSHIP UNDER MUSLIM LAW

Guardianship of a minor can be defined as an overall supervision of minor’s growth and his welfare.
Guardianship empowers guardian to have custody of a minor for a certain period of time.

The term ‘Guardian’ is defined in Guardian and Ward Act as “a person having the care of a person of
a minor or of his property, or of both his person and his property”

Tahir mahmood defines guardianship in Muslim law as “Guardianship of a person in relation to a

child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father
away for a legally prescribed period only from a particular aspect of the guardianship of person,
namely, the custody and physical upbringing of the child.”

Under Muslim law, Guardianship of minor is known as Hizanat.

Types of guardianship

Muslim law recognizes various types of Guardianship which are as follows:

1- Natural or legal Guardian

2-Testamentary Guardian

3-Guardian appointed by courts

4-De-facto Guardian

Natural Guardian

Natural guardian is defined as first legal guardian of the minor. Under various schools of Muslim law,
father is considered as natural guardian of the minor. The father’s right to act as guardian is an
absolute right which is given to him under the substantive law of Islam.

Father is known as natural guardian of minor but in his absence instead of mother, grandfather has
the authority to act as guardian of the minor. If both are not present or dead then any executor who
is appointed by any of them can act as guardian. A minor cannot be represented by grandfather if
father is alive.

The natural guardian of a minor in order of priority is as follows:

1-Father

2- Executor of father

3-Paternal grandfather

4- The executor of paternal grandfather

Thus, mother, brother, uncle etc is not entitled as of right to be the legal guardian of the property of
minor
Testamentary Guardian

Testamentary guardian can be defined as guardian appointed by a will. Will can be made by father
only and in absence of father and his executors, Paternal grandfather can do so. Both schools of Shia
and Sunni approve this. But in both the schools, mother has no right to appoint testamentary
guardians. In Shia school, Non Muslim cannot be appointed as a Testamentary guardian.

However, Muslim law does not laid down any formalities regarding appointing of Testamentary
Guardian. Appointment of testamentary guardian may be express or implied.

In case of Atika Begum v. Mohammad Ibrahim5, it was held that in presence of Grandfather, father
has no right to appoint guardian of minor.

Guardian appointed by courts

When there is absence of natural or legal guardian of minor, Courts has the power to appoint
guardian of the minor for the development and welfare of the minor as well as his/ her property.

The Act which empowers Courts to appoint guardian of minor is named as Guardian and Wards Act,
1890. This Act granted powers to District courts to appoint Guardian of minor. While appointing
Guardian, Court considers welfare of the child and his/her property.

Limitations of Guardian appointed by courts

Though guardian appointed by the courts has full right to take care of the property of the minor but
certain limitations are also prescribed in which prior permission of Courts are required which are as
follows:

• Mortgage;

• Transfer by sale;

• Transfer by gift; and

• Exchange the property.

DE – FACTO GUARDIAN

A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or
statutory guardian, but has himself assumed the custody and care of a child. According to Tyabji a l
and de-facto guardian means that an unauthorized person who, as a matter of fact, has custody of
the person of a minor or his property. A de facto guardian could be a person having no authority for
the guardianship however underneath the circumstances has taken the responsibility to act as the
guardian of a minor.
GUARDIANSHIP OF PROPERTY UNDER MUSLIM LAW

Legal Guardianship of the minor’s property : Under Muslim law following parsons, in the order of
performance, are recognize as the legal guardian of a minor’s property-

 father
 Executor appointed by the father under a will.
 Paternal grandfather
 Executor appointed by the paternal grandfather under a will.

The guardian of a minor’s property belongs primarily to the father who is a natural guardian. After
his death it belongs to the executor appointed by the father under a will. Such an executor, under
the authority of the father’s will, acts as a legal guardian of the minor’s property. If there is no will
appointing any person as an executor then, after the death of the father , the paternal grandfather is
entitled to the guardianship of the minor’s property. No other relatives like mother, brother of the
minor is given this status. However father & paternal grandfather have authority to appoint any
person as executor.

In Mahboob Saheb v. Syad Ismail[2] , The Supreme Court of India has held that, although mother is
in the nearest relationship of her child, she is not regarded as guardian of her minor child’s property.
Therefore she has no has no right to transfer the property of the minor child.

Power of the Legal Guardian: The guardian of the property of a ward is bound to deal with it as
carefully as a man of ordinary prudence would deal with his own, and subject to the provisions of
the Guardians & Wards act, 1890, he may do all reasonable and proper act for the realization,
protection or benefit of the minor’s property.[3] The power of the guardian to deal with the
property is depends upon the nature of the property.

Transfer of Immovable Property by Legal Guardian: Keeping in view the Muslim personal law and
also the provisions of the Guardians & Wards act, 1890,the court in India have laid down specific
rules relating to guardian’s power of disposition of the minor’s property, are given below:

1. Whereby sale, the guardian can get double the value of the property of his
2. Where the sale is absolutely necessary for the maintenance of the minor.
3. Where sale is necessary for the satisfaction of a debt incurred by the livelihood of the minor
4. Where there are some general provisions in the will of the testator such as the payment of
the legacies, which cannot be complete without the sale of the property.
5. Where the property ceases to be a beneficial property.
6. Where the property is in the hands of a usurper and the guardian has a reasonable belief
that the property cannot be recovered from such person.
7. where the property is in decaying or is being destroyed, or there is an imminent danger of its
being lost.

Mortgage: The legal guardian’s right to mortgage is same as that for the sale. A guardian is not
authorised to mortgage his wards property except in the interest of the minor.
Lease: The guardian’s power to grant lease of the minor’s property is also subjected to the
conditions that is must be for the advantage of the minor or is otherwise urgently required.